Justice Anthony Kennedy was a dissenter in the Supreme Court's ruling… (Christina House / For The…)
The Supreme Court cast doubt Tuesday on the future of affirmative action at the nation’s colleges and universities, agreeing to hear an appeal from a white student in Texas who seeks an end to "racial preferences" in college admissions.
The decision could either limit the use of affirmative action or broadly forbid using race as an admissions factor.
However, because the court’s calendar is filled through the spring, the court will not hear arguments in the case until October, weeks before the presidential election.
The Obama administration could choose to weigh in on the issue, but it need not do so. The court’s intervention nonetheless is an ominous sign for defenders of affirmative action. Justice Elena Kagan also announced she will not take part in the decision.
The court has been closely split on affirmative action since 1978. By a 5-4 vote then, the justices said universities may consider a minority student’s race as a plus factor when choosing new students so as to bring about more diversity in the class. Eight years ago, the court reaffirmed that view in a 5-4 opinion written by Justice Sandra Day O’Connor. The dissenters included Justice Anthony Kennedy.
Not long afterward, O'Connor retired and was replaced by the more conservative Justice Samuel A. Alito Jr. In 2007, he joined an opinion by Chief Justice John G. Roberts Jr. that forbids school districts from assigning students to elementary or high schools for the purpose of creating a better racial balance. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts said.
The new case, Fisher vs. University of Texas, gives the Roberts court its first opportunity to rule on the constitutionality of affirmative action in higher education.
Five justices are on record opposing "racial balancing" policies. They include Justices Antonin Scalia and Clarence Thomas, in addition to Roberts, Alito and Kennedy.
But the Texas case also arises in an unusual circumstance which could limit the significance of the court’s ruling.
In 1997, the Texas Legislature adopted the so-called "Top Ten" plan for choosing new students. As such, the University of Texas was told to accept the top 10% of the graduates from all the state’s high schools. The goal was to maintain racial and ethnic diversity in the freshman class without using race as a factor.
The plan appeared to work. By 2004, 21% of the entering students at the Austin campus were black or Latino, a higher percentage than when the university had used race-based affirmative action.
After the high court endorsed continued affirmative action through O’Connor’s opinion, Texas university officials announced they would again give a preference to "underrepresented minorities" beyond those who were admitted under the "Top Ten" policy. In 2007, the university announced a "record high" number of entering black and Latino students, who made up about 26% of the freshman class.
In 2008, Abigail Fisher was turned down for admission to the University of Texas. Her grades were not good enough to put her in the top 10% of her class, but she said her tests and grades "exceeded those of many of the admitted minority candidates." She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection of the laws.
She lost before a federal judge and the U.S. 5th Circuit Court of Appeals, which said it was bound to follow O’Connor’s opinion from the University of Michigan law school case.
Her appeal argues that the 14th Amendment "requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest" in having some racial diversity. Since the University of Texas had already achieved diversity through the use of its "Top Ten" policy, it had no need to use race as an admissions factor, Fisher’s lawyers argued.
Texas state lawyers had strongly urged the court to turn away the appeal. They said Fisher was about to graduate from Louisiana State University and that her case would soon be moot.